Western Home Ins. Co. v. Thorp
Decision Date | 08 December 1891 |
Citation | 48 Kan. 239,28 P. 991 |
Parties | THE WESTERN HOME INSURANCE COMPANY v. LEXCINA C. THORP |
Court | Kansas Supreme Court |
Editorial Note:
This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.
Error from Miami District Court.
ACTION to recover on a policy of fire insurance. Judgment for plaintiff, Thorp, on February 6, 1889. The Company comes to this court. The opinion states the facts.
Sperry Baker, for plaintiff in error.
W. H Browne, for defendant in error.
This was an action on a policy of insurance. The petition reads as follows:
To said petition the defendant below filed the following answer:
The reply was as follows:
The insurance policy sued on was attached to the petition, and contains, among other things, the following provisions:
The case was tried by a jury, which found for the plaintiff in the sum of $ 357.75, and also made the following special finding:
This is the only finding in the record that in any way relates to the subject of proof of loss. The defendant below requested the court to submit the following instruction to the jury:
"That, unless the plaintiff made proofs of loss in substantial compliance with the terms of the policy before the commencement of the suit, she cannot recover."
This request was refused, and the defendant took its exception thereto. The instructions given by the court are as follows:
These were all the instructions given, except the usual instructions as to weight of evidence. The defendant moved for judgment on the findings, which motion was overruled, and exception saved. The defendant also moved for a new trial, and gave as its reasons therefor, among others, the following:
--said instruction being the one heretofore copied.
The record does not contain the evidence in the case. Under the provisions of the policy sued on, the plaintiff must establish one of two things in order to recover: (1) She must show that she made proof of loss in substantial compliance with the terms of the policy before the commencement of the suit; or (2) she must show a waiver of such proof of loss by the company. (Insurance Co. v. Hathaway, 43 Kan 399, 23 P. 428; Insurance Co. v. Deford, 38 Md. 382; Insurance Co. v. Carpenter, 4 Wis. 20; Railroad Co. v. Insurance Co., 105 Mass. 570; Insurance Co. v. Schell, 29 Pa. 31.) The plaintiff does not in terms plead the making of proof of loss; but she makes the general allegation in her petition that she had done and performed all the conditions required of her by the terms of the policy and the schedule thereto attached. This general allegation is equivalent to an allegation, among others in the petition, of proof of loss made in compliance with terms of the policy. ( Tripp v. Insurance Co., 55 Vt. 100; Cassacia v. Insurance Co., 28 Cal. 628; Insurance Co. v. Sweetser, 116 Ind. 370, 19 N.E. 159.) This was denied in the answer, and the jury find that no signed and sworn statement of loss was made. The language of the jury's answer to the question relating to proof of loss is narrow, but we think that it is equivalent to saying that the plaintiff made written proof of loss. A written statement of loss must be signed, to be identified, and before such statement becomes proof of loss, it must be sworn to. The proof of loss, to even substantially comply with the terms of the policy, must be in writing and verified by an oath. The plaintiff, having failed to make proof of loss, could not recover in the case unless she was in a position to prove a waiver of such proof by the company. Was she in such a position? We think not. There is nothing in the pleadings upon the subject of waiver. The plaintiff could not prove a waiver without first having plead it. ...
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